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Allahabad High Court · body

2017 DIGILAW 169 (ALL)

RAKESH KUMAR v. STATE OF U. P.

2017-01-12

ANANT KUMAR

body2017
JUDGMENT Hon’ble Anant Kumar, J.—Heard learned counsel for the petitioner, learned A.G.A. and perused the material placed on record. 2. This petition under Section 482 Cr.P.C. has been filed with the following prayer: “to set aside the criminal proceedings of special trial No. 257/2016 - State v. Rakesh Kumar under Section 363, 366, 376, 504, 506 I.P.C. initiated on the basis of impugned First Information Report lodged by the opposite party No. 2 registered at crime No. 98/2004 at Police Station Auras in District -Unnao, the investigation Officer filed impugned charge-sheet bearing No. 34/2004 on 20.6.2004, pending in the Court of Special Judge (SC/ST Act), Unnao and further be pleased to stay the proceedings of Special Trial No. 257/2016 pending in the aforesaid Court, in the interest of justice.” 3. It is stated by the learned counsel for the petitioner that one Smt. Chedana wife of Bhaiya Lal had given an application to D.I.G., Lucknow Range, Lucknow to the effect that on 14.3.2004, at about 6:00 P.M., daughter of the complainant who was aged about 13 years had gone to take water from handpump and after taking water she returned to her home. In the meantime when the complainant had gone to purchase wheat flour, the accused persons, namely, wife of Khaggan, Khaggan, Sattar, Chottaka, Salim, Shamim, who were standing beside the house of the complainant in the lane, kidnapped the daughter of the complainant. When she returned back her daughter was missing. 4. On inquiry it came to her knowledge that her daughter was kidnapped by the above mentioned accused persons. In the F.I.R., present petitioner was not named. Later on, the prosecutrix was recovered and her statement under Section 164 Cr.P.C. was recorded. In her statement also she did not name the present petitioner. Only name of one Chairman was stated. However, after the investigation charge-sheet was filed against the accused persons, including the present petitioner for the offence under Sections 363, 366, 376, 504 I.P.C. 5. After taking cognizance, the learned Magistrate committed the case to the Court of Sessions. However, the case of the petitioner was left. Case of the present petitioner was separated and the case of other accused persons was committed to the Court of Sessions, which was registered as Sessions Trial No. 136 of 2004. After taking cognizance, the learned Magistrate committed the case to the Court of Sessions. However, the case of the petitioner was left. Case of the present petitioner was separated and the case of other accused persons was committed to the Court of Sessions, which was registered as Sessions Trial No. 136 of 2004. During trial the prosecutrix did not support the prosecution version and she stated that she had gone with her own free will with one Mustafa, later on with Sabbir. She had categorically stated that she had got no grievance against the other persons including the present petitioner. Accordingly, the trial resulted in acquittal of all the accused persons of Sessions Trial No. 136 of 2004. 6. It is stated by the learned counsel for the petitioner that now the case of the petitioner has been committed to the Court of Sessions which has been registered as Sessions Trial No. 257 of 2016, under Sections 376, 504, 363,366, 506 I.P.C. Aggrieved, by the said committal, the present petition has been filed. 7. It is stated by the learned counsel for the petitioner that on the same set of facts and evidence, other accused persons have been acquitted. The prosecutrix has already given statement to the effect that she has got no grievance or grudge against other persons. So, undergoing the entire trial proceedings would be a futile exercise for him and he will face unnecessary mental trauma and harassment by undergoing the trial proceedings. 8. From the perusal of the record, it is apparent that the prosecutrix had not supported the prosecution version and at an earlier occasion, while giving her statement before the Court of Sessions, she stated that she has got no grudge or grievance against other persons. So, to my view, it would be a futile exercise to undergo the entire trial proceedings and record the evidence, particularly, when there is no chance of conviction of the present accused in the trial and keeping the trial pending against the present accused will be an abuse of the process of law. 9. In view of the above mentioned facts and circumstances, the petition under Section 482 Cr.P.C. is allowed. 9. In view of the above mentioned facts and circumstances, the petition under Section 482 Cr.P.C. is allowed. The proceedings of Sessions Trial No. 257 of 2016 (State v. Rakesh Kumar), arising out of Case Crime No. 98 of 2004, under Sections 376, 504, 363, 366, 506 I.P.C., Police Station Auras, District Unnao, pending in the Court of Special Judge (SC/ST Act), Unnao are hereby quashed. ————— [2017(6) ADJ 229] ALLAHABAD HIGH COURT BEFORE : SUNEET KUMAR, J. HRIDAI CHAUBEY @ HRIDAI NARAYAN CHAUBEY ....Petitioner Versus STATE OF U.P. AND OTHERS ....Respondents (Civil Misc. Writ Petition No. 24397 of 2015, decided on 25th November, 2016) (Indian) Forest Act, 1927—Sections 52-A and 68—Release—Vehicle—Confiscated by Forest department carrying stone bolders, forest produce—Petitioner being owner was himself driving vehicle carrying forest produce—Failed to prove that it was not forest produce—Vehicle involved in offence would be confiscated under Sections 52-A and would become property of State and not liable to be released under Section 68 of Act—No illegality, infirmity or jurisdiction error in impugned order. [Paras 8 to 11] Result; Petition Dismissed. Counsel : Anil Kumar Mishra for the Petitioner; C.S.C. for the Respondents. JUDGMENT Hon’ble Suneet Kumar, J.—Petitioner by means of this writ petition is assailing the order dated 12 March 2015 passed by the Appellate Authority/Special Secretary, Van Anubhag-2, U.P. Government, Lucknow in Appeal No. 5088/14-2-2014/076/2015 arising from an order dated 7 August 2014 passed by the Prescribed Authority/Divisional Forest Officer, Kamoor Vanya Jeev Prabhag, Mirzapur, seizing the vehicle under Section 52A of the Indian Forest Act. 2. The petitioner is the owner of Tractor Trolley bearing Registration No. U.P. 64-S 4219 which is alleged to have loaded boulder purportedly forest produce was carrying it on illegal transportation documents. The vehicle was intercepted by the Forest Authorities, consequently, a Range Case No. 02 of 2014 under Sections 41 and 42 of the Indian Forest Act, was registered on 27 April 2014. Pursuant thereof, proceedings for seizure of the vehile was initiated, petitioner entered appearance by filing objection contending therein that the bolder loaded on the vehicle was not forest produce but was loaded from the plot of the lease holder, namely, Rajesh Yadav and was being transported on a valid MM-11 Form. The Prescribed Authority rejected the objection, aggrieved, petitioner preferred an appeal which was also rejected. The Prescribed Authority rejected the objection, aggrieved, petitioner preferred an appeal which was also rejected. It is sought to be urged by the learned counsel for the petitioner that the evidence adduced by the petitioner was not considered and petitioner is entitled for release of the vehicle under Section 68. 3. Learned Standing Counsel in rebuttal would submit that the forest guards patrolling near the plantation, saw a tractor alongwith trolley carrying stone bolders apprehending forest produce, the vehicle was intercepted. The driver of the tractor was identified as owner of the vehicle by the forest officials, consequently, a case was registered and seizure report was sent to the Court of the Additional Chief Judicial Magistrate, Sonebhadra. The Chief Judicial Magistrate vide order dated 14 July 2014 directed the forest officials to release the vehicle. In revision the order of the Chief Judicial was reversed. The proceedings were initiated under Section 52A of the Indian Forest Act for confiscation of the vehicle, the Prescribed Authority, as well as, the Appellate Authority upon perusal of the material available on record passed the orders confiscating the vehicle alongwith the forest material. Section 68 would not be applicable. 4. Rival submissions fall for consideration. 5. The impugned order would note that the petitioner being the owner was himself driving the vehicle carrying forest produce. The assertion of the petitioner that the boulders were not forest produce but were lifted from the plot granted on mining lease to a private person, was not substantiated, for the reason, that MM-11 Form produced by the petitioner was found to be a forged document. Upon seizure the volume of the bolders was two cubic meter, whereas, the MM-11 Form was for 3 cubic meter stone bolders, thus, the quantum seized and that mentioned in the MM-11 Form did not match, therefore, the authority opined that the boulders were forest produce. 6. Learned counsel would further submit that petitioner is entitled for release of the vehicle in view of the provisions contained in Section 68 which confers power to compound offences. 6. Learned counsel would further submit that petitioner is entitled for release of the vehicle in view of the provisions contained in Section 68 which confers power to compound offences. Section 68 (1) and (2) is extracted: (1) The State Government may, by notification in the Official Gazette, empower a Forest officer (a) to accept from any person against whom a reasonable suspicion exists that he has committed any forest-offence, other than an offence specified in Section 62 or Section 63, a sum of money by way of compensation for the offence which such person is suspected to have committed, and (a) to accept from any person against whom a reasonable suspicion exists that he has committed any forest-offence, other than an offence specified in Section 62 or Section 63, a sum of money by way of compensation for the offence which such person is suspected to have committed, and (b) when any property has been seized as liable to confiscation, to release the same on payment of the value thereof as estimated by such officer. (b) when any property has been seized as liable to confiscation, to release the same on payment of the value thereof as estimated by such officer.” (2) On the payment of such sum of money, or such value, or both, as the case may be, to such officer, the suspected person, if in custody, shall be discharged, the property, if any seized shall be released, and no further proceedings shall be taken against such person or property. 7. Section 68 provides that the State Government may by notification empower a forest officer to release any property that has been seized as liable to confiscation, and to release the same on payment of value thereof as estimated by the officer. 8. Learned Standing Counsel would submit that proceedings were initiated under Section 52A as amended by the State of Uttar Pradesh which pertains to the seizure of the property and confiscation of the vehicle. He would, therefore, submit where the property is seized and confiscated the offence is compoundable under Section 68 but the vehicle involved in the offence would be confiscated under Section 52A and would become the property of the State which is not liable to be released under Section 68. 9. He would, therefore, submit where the property is seized and confiscated the offence is compoundable under Section 68 but the vehicle involved in the offence would be confiscated under Section 52A and would become the property of the State which is not liable to be released under Section 68. 9. Section 52A is extracted: “52-A. Procedure on seizure.—(1) Notwithstanding anything contained in this Act or any other law for the time being in force where a forest officer is believed to have been committed in respect of any forest produce, which is the property of the State Government. The Officer seizing the property under sub-section (1) of Section 52 shall, without unreasonable delay, produce it together with all the tools, boats vehicles, cattle, ropes, chains and other articles used in committing the offence, before an officer, not below the rank of a Divisional Forest Officer, authorised by the State Government in this behalf, who may, for reasons to be recorded, make an order in writing with regard to custody, possession, delivery, disposal or distribution of such property, and in case of tools, boats, vehicles, cattle, ropes, chains and other articles, may also confiscate them. (2) The authorised officer shall, without any undue delay, forward a copy of the order made under sub-section (1)to his official superior. (3) Where the authorised officer passing an order under sub-section (1) if of the opinion that the property is subject to speedy and natural decay he may order the property or any part thereof to be sold by public auction and may deal with the proceeds as he would have dealt with such property if it had not been sold and shall report about every such sale to his official superior. (4) No order under sub-section (1) shall be made without giving notice, in writing, to the person from whom the property is seized, and to any other person who may appear to the authorised officer to have some interest in such property: Provided that in an order confiscation a vehicle, when the offender is not traceable, a notice in writing to the registered owner thereof and considering his objections if any will suffice. (5) No order of confiscation of any tool, boat, vehicle, cattle rope, chain or other article shall be made if any person referred to in sub-section (4) proves to the satisfaction of the authorised officer that any such tool, boat, vehicle, cattle rope, chain or other article was used without his knowledge or connivance or without the knowledge or connivance of his servant or agent, as the case may be, and that all reasonable precautions had been taken against use of the objects aforesaid for the commission of the forest offence. 10. Section 52A (State Amendment) provides procedure for seizure of forest produce and confiscation of vehicle and other tools. The section opens with a non obstante clause “notwithstanding anything contained in this Act or any law for the time being is force...” therefore, Section 52A would govern the procedure for release of the vehicle. The section primarily provides for confiscation of the vehicle carrying forest produce. Sub-section (5) is exception to the release of the confiscated vehicle. It is only if the owner of the vehicle proves to the satisfaction of the authorized officer that any such vehicle was used without his knowledge or connivance or that of his servant or agent as the case may be. The finding recorded by the authorities is that the owner of the vehicle was plying the vehicle, therefore, the case of the petitioner would not fall under sub-section (5) of Section 52A. Section 68 would not apply nor does it deal with the vehicle or tool involved. 11. In the facts of the present case a finding has been returned by the authorities that the owner of the vehicle was plying the vehicle carrying forest produce i.e. boulders, therefore, the vehicle was directed to be confiscated. The learned counsel for the petitioner failed to point out any illegality, infirmity or jurisdictional error. 12. The petition being devoid of merit, is accordingly, dismissed. 13. No cost.